What Can We Do About The Supreme Court?

It’s no longer possible to avoid recognizing the extreme radicalization of the United States Supreme Court.  As an email from the Center for Inquiry accurately characterized the latest ruling, it was “not the act of a secular court but of a religious tribunal.” 

Since the ascension of Mitch McConnell’s hand-picked culture warriors, we have seen a steady stream of decisions laying waste to the legal underpinnings of American liberties. I have written before about the terrifying implications of the abortion ruling,  and why it threatens a much broader array of personal liberties than reproductive autonomy. (In his concurring opinion in Dobbs, Thomas made that threat quite explicit.) The Court has continued its assault on genuine religious liberty, which requires separation of church and state. And its wholesale abandonment of previous precedents on gun legislation–including even the pro-Second-Amendment decision in Heller written by “originalist” Antonin Scalia–is further evidence of a Court majority intent upon rewriting and re-imagining two hundred years of constitutional jurisprudence.

A reader asked me to comment on a report from the Brennan Center proposing changes to the way jurists are elevated to the high court. It is worth emphasizing that the Center issued this paper in 2019, and that it is only one of numerous proposals published during decades of scholarship addressing increasing concerns about the Court’s operations– the analysis was not written as a response to the recent blitz of appalling decisions.

Perhaps the thorniest issue raised by the current operation of the Court involves what the Brennan paper calls “democratic accountability.”

Judicial accountability is different from legislative or executive accountability; the whole purpose of lifetime appointments to the federal bench was to insulate the judiciary from the political passions of the moment–to avoid the sort of “accountability” to political pressure that the other branches  quite properly experience. The Executive and Legislative branches were created to be (more or less) directly answerable to “we the people,” but judges were expected to make thoughtful and considered decisions based on the law and facts as they saw them. (Electing judges, as some states do, is a repudiation of that foundational intent.)

On the other hand, the courts certainly weren’t meant to be untouchable quasi-legislative bodies. (Remember when Republicans screamed about “Judicial Activism” and “Imperial Courts”?) There are several ways to insure appropriate democratic accountability without abandoning the original purpose of lifetime appointments.

As the Brennan report noted,

Two funda­mental flaws in the Consti­tu­tion’s appoint­ment system must be fixed. First, there is no regu­lar­ized system for Supreme Court appoint­ments. Because pres­id­ents can appoint new justices only when a sitting justice resigns or dies, justices are appoin­ted unevenly, so that some pres­id­ents have many appoint­ments, while others have few or even none. In addi­tion, because justices now serve longer on aver­age than their prede­cessors, there are signi­fic­antly fewer appoint­ment oppor­tun­it­ies. These devel­op­ments fray the only formal link between the court and the people — nomin­a­tion by an elec­ted pres­id­ent and confirm­a­tion (or not) by elec­ted senat­ors. In the early days of the repub­lic, when the court was viewed as weak, such defects caused little harm. But today, with the court hold­ing immense power, the lottery appoint­ment system under­mines the court’s consti­tu­tional legit­im­acy and erodes the court’s connec­tion to our demo­cracy.

Second, life tenure permits justices them­selves to stra­tegic­ally time their retire­ments so that an ideo­lo­gic­ally like-minded pres­id­ent can appoint their successor. Recently, this has become the norm. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders. In addi­tion, some justices have remained on the court after a severe decline in their mental or phys­ical capa­cit­ies, in hopes of last­ing until a pres­id­ent who shares their legal and policy pref­er­ences takes office. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders when they wrote the Consti­tu­tion.

In the current system, some pres­id­ents appoint an outsized number of justices, some justices outlive the offi­cials who appointed them by many years, and  justices can time their retirements to ensure the ideo­logy of their successors. Worse still, a majority of Justices on the current Court were appointed by Presidents who had lost the popular vote.

As a result, today’s Court lacks democratic legitimacy. 

Correcting the two flaws described in the linked report would require a constitutional amendment prescribing regular appointments coupled term limits. (Constitutional scholars argue that 18-year terms should be adequate to insulate judges from political pressure.)

Given the daunting barriers to passage of constitutional amendments–not to mention the lengthy timeframe of even successful efforts– several legal scholars advocate enlarging the Court. Changing the number of Justices can be done by statute, and in fact, has been done before. Suggestions for enlarging the Court long preceded the current Court, and were prompted primarily by workload concerns–more recent Courts hand down far fewer decisions than previous ones did.

 The author of the Brennan report dismisses that remedy as too partisan, but–as I noted previously–his paper was written before Amy Coney Barrett joined the Court, bringing to five the number of radical religious culture warriors (with the frequent concurrence of the Chief Justice) intent upon dismantling years of constitutional jurisprudence. And five is enough to get the job done.

If the addition of justices is seen as partisan, so be it. The current Court is a thoroughly partisan religious tribunal–and a clear and present danger to the Republic. Ignoring that fact is not an option.

Comments

What Now For Gun Control?

Congress appears to be on the cusp of passing a gun-control measure, breaking a 30-year standoff. The bill takes baby steps toward the sort of gun measures that would meaningfully reduce the carnage, but the fact that Congress is passing anything  must be applauded as progress.

Of course, whether those baby steps will survive the horrendous, twisted logic of the Supreme Court’s recent evisceration of government’s ability to control armed mayhem remains to be seen.

Given that astonishing and dishonest opinion, what can be done?  

As a recent article from Talking Points Memo reminds us, it’s always, ultimately about the culture– and cultures are shaped by prevailing narratives.

An object, cloaked in an aura of glamor and cool, is, or at least feels, ubiquitous in American society. The object is a clear threat to public health — though that fact often gets eclipsed by arguments emphasizing the rights of those who like to use the object. Powerful, monied and well-connected special interest groups stand behind the object, and work fervently to thwart regulation and restrictions on it. 

Today, that object is a gun. In our recent past, it was a cigarette. 

Most readers of this blog remember when cigarette smoke was everywhere. We encountered it on airplanes, in bars and restaurants, and in our offices. The federal government was loathe to act; the FDA didn’t even get authority to regulate tobacco until 2009.

So–if government didn’t drive the change, what explains the anti-cigarette movement’s incredible success? In 2020, the most recent year for which the Centers for Disease Control provides data, 12.5 percent of Americans over the age of 18 smoked. In 1965, it was 42.4 percent.

That’s a pretty impressive victory. The question is, can we use the tactics that were so successful against Big Tobacco to get meaningful gun control, especially since the Court has evidently all but neutered government? 

Gun owners are in the minority. Smokers were also a minority — but, as the article notes, they were a powerful minority.

“In the 20th century, the smokingest segments of Americans were white men; now, the most gun owningest segments of Americans are white men,” Sarah Milov, associate history professor at the University of Virginia and author of “The Cigarette: A Political History,” told TPM. “The consequence of that for non-gun owning Americans is that they live in a world where public space is governed by the political demands and practices of what is truly a minority.”

The gun and cigarette lobbies spent millions obscuring that fact, presenting guns and cigarettes as foundational and ubiquitous parts of American life. Resistance to them, then, is futile — even unpatriotic.

The anti-smoking campaign changed attitudes about smoking in public places. They countered arguments about smokers’ rights by focusing on the harm to those unable to avoid second-hand smoke. When Big Tobacco fought no smoking rules for bars and restaurants, arguing that customers who didn’t like smoky venues could go elsewhere, activists pointed out that workers in those establishments had no such choice.

Experts think there are lessons to outsource to the fight for gun regulation: the anti-tobacco movement was coalitional, with outposts in every state; activists quickly realized the power of changing the narrative and stigma around public smoking, and of centering the rights of nonsmokers being harmed by cigarette smoke; instead of despairing at Congress’ coziness with big tobacco, they took the fight to local government. 

Even before the Court’s decision in New York State Rifle & Pistol Association v. Bruen,  ALEC had made it impossible to enlist most local governments in the movement to control weapons; a majority of states have so-called “pre-emption” statutes drafted by ALEC, preventing local governments from regulating firearms and ammunition.

The gun industry also benefits from a seriously devoted fan base. Many — though far from all — gun owners see their firearms as more than a recreational tool or even a means of self defense. The cult of the gun has grown so powerful that some owners consider it a part of their identity: shorthand for individualism and freedom, for triggering the libs and intimidating a federal government that supposedly wants to change their way of life. 

Even the tobacco industry’s biggest customers largely lacked that fervor.

Despite these considerable disadvantages, gun control advocates can begin to change the narrative from the NRA’s emphasis on gun owners’ rights. We can form coalitions emphasizing the rights of the rest of us–a clear majority– not to be shot and not to live in constant fear for ourselves and our children.

It took a long time to change the culture around smoking, but when the narrative changed, so did the culture– and when the culture changes, so (eventually) do the laws–and even Supreme Court opinions. 

Speaking of changes, tomorrow I’ll consider the radicalization of the Court…

Comments

The Decline Of Seriousness

A few days ago, I posted about the idiocy of proposals made by several Republican legislators who advocate arming teachers. On Facebook, a friend who is a lawyer posted a number of points in addition to the ones I’d raised; he’s a good lawyer, and in “lawyerly” fashion, he raised the following nine questions that focused on the significant liability issues involved.

Here are his contributions to the multiple other concerns that any such effort would raise:

1) If a child gains access to the teacher’s gun and something bad happens, will the school system’s insurance cover the liability?
2) If a teacher believes use of force is needed and accidentally harms an innocent child, will the school system’s insurance cover the liability?
3) If a teacher wrongfully decided that use of force is needed, will the teacher face criminal liability?
4) Will the school system (that won’t pay for pencils) pay for the gun, ammunition, training, a trigger lock, a gun cabinet, or other necessities?
5) Will teachers be required to “register” that they have a gun?
6) What happens, in the heat of the moment, if there is a shootout between teachers, each thinking the other is the shooter?
7) How will police differentiate an armed teacher from a school shooter?
8)) Can a teacher defend himself/herself against a police officer who thinks the teacher is the shooter?
9) Will a teacher face liability for failing to use force?

Anyone who has ever practiced law–or, for that matter, sold insurance–will recognize the pertinence of these questions.

Of course, just reading my friend’s questions raises several others. Why aren’t reporters asking proponents of this stupidity to respond to these and other obvious issues? Why are lawmakers–who ask for  our votes on the basis of their presumed ability to consider the consequences of  legislation they pass and programs they fund–seemingly blind to the existence of these very foreseeable concerns? 

That was a rhetorical question; we all know the answer. They aren’t serious–not about arming teachers, and not about doing their jobs.

If it has done nothing else, this entire discussion about gun violence has vividly illustrated the vacuousness of  current American politics and the inability of our institutions–especially Congress–to address the most pressing issues facing the country. It’s true that it has put a spotlight on the clowns–the cohort of embarrassing know-nothings, bigots and nut-cases–but it has also pointed to the reason they are there: voters who, for reasons I cannot comprehend, cast ballots for them.

Marjorie Taylor Green just won her primary. She’s far from the only certifiably crazy member of Congress, just one of the loudest. Remember Paul Gosar? His siblings took out television ads warning voters that he was unfit to serve, but despite the fact that several of his brothers and sisters warned that he was mentally “off,” he won his election. I’ve never seen Jim Jordan when he wasn’t screaming something partisan and off the rails. Most people who read this blog can name a number of others, and none of them seem to make the slightest attempt at transmitting gravitas, or seriousness. They evidently think they were elected to put on a performance (preferably on Fox News) not to study and consider the pros and cons of legislation.

Today’s GOP isn’t in the business of governing; instead, its members are providing bread and circuses.

With respect to my lawyer-friend’s very foreseeable, very logical questions, I’m quite sure  these bozos have never considered any of them–they are too busy fighting a culture war and setting Americans against each other. The suggestion to arm educators is just one way among many to avoid actually thinking about the problem of mass gun violence–a glib and facile response that excuses them from doing the difficult job of thinking about the problem and devising and evaluating reasonable solutions.

Bottom line, I am SO TIRED of people who spit on a Constitution they’ve clearly never read or studied, who refuse to give taxpayers a single day’s real work for the dollars we pay them, and who spend zero time or effort considering the national interest or the common good.(They think any effort to legislate for the common good is socialism–and they’re agin it.)

And I am really, really OVER the morons who vote for them and the millions of non-voters whose absence at the polls increases the likelihood that the morons’ candidates will win.

Okay–rant concluded……See you tomorrow.

Comments

Vote No Because We Say So…

Like many Americans these days, my husband and I stream our television watching. But we do watch the news on traditional broadcast television, and lately, we’ve been treated to one of those periodic political non-messages, urging us to call on our Congressperson to oppose a bill that “will make us less safe.”

No details, of course, about the bill–only the urgent need to oppose it. It’s a bad bill, and we know it’s bad because the people paying for the advertisement say so.

So what is really going on–other than another example of just how stupid the sponsors of the ad think we are? (Admission: I worry that they may be right about that…) Tom Wheeler of the Brookings Institution has the details.

“A multimillion-dollar campaign is pushing Dems to ditch antitrust reform,” The Washington Post headlined. Of the $36 million spent to date, The Wall Street Journal reports the Computer & Communications Industry Association (CCIA) has spent the most—over $24 million. The CCIA commercials reportedly focused on the swing states of Arizona, Georgia, Nevada, Wisconsin, and New Hampshire. CCIA represents companies such as Amazon, Apple, Meta/Facebook, and Alphabet/Google.

“Don’t Break What Works” is the theme of the CCIA advertisements. “Congress has plans that could stop progress in its tracks, breaking the products and services you love,” the commercial warns. The campaign targets S. 2992, the bipartisan American Innovation and Choice Act that would empower the government to challenge self-preferencing practices of the online platforms if they are determined to be anticompetitive.

Of course, you would never guess that the bill you are being told to oppose had anything to do with anti-trust; no, the voice-over tells us it’s about national security. The advertisement I heard–paid for by something called the Consumer Technology Association– insists that  the legislation is a “national security threat.” It references the Russian attack on Ukraine and “cyber warfare against the U.S.,” and then asks, “Why is Congress considering legislation that makes us less safe?” The commercial doesn’t make reference to a specific piece of legislation, but it concludes with a dark warning:  “Don’t break American technology when we need it most.”

The Brookings report details other, similar ads. Among them:

Another advertising campaign is being run by a heretofore unknown organization named American Edge Project. These commercials also fail to mention what legislation concerns them, how those concerns could be fixed, or how the horrors they warn of could actually happen.

“I don’t understand why some in Congress want to take away the technology we use every day,” the owner of a small plumbing business worries in an American Edge ad. Lamenting “this political campaign against American technology,” Larry Melton of Gilbert, Arizona, warns, “our leaders need to strengthen, not weaken, American technology.”

In another advertisement from the group, small business owner Renee Carlton of Corinth, Mississippi, warns that “some politicians are pushing new laws that will weaken American technology.” The result, she cautions, “will make small businesses dependent on China for the technology we use every day.” Ms. Carlton concludes, “I have a message for Congress. Don’t weaken American technology.”

What will this mysterious bill really do? According to ARStechnica,

The American Innovation and Choice Online Act, cosponsored by Sen. Amy Klobuchar (D-Minn.) and Sen. Chuck Grassley (R-Iowa), would limit Big Tech firms’ ability to “unfairly preference” their own products and services. For example, under the proposed bill, Amazon couldn’t boost search rankings of its private-label products, and Apple and Google couldn’t do the same for their apps in their app stores

These Big Tech platforms  can be immensely useful, but they also have a dark side.

By working both sides of a market, platform owners have unrivaled insights into both buyers and sellers, giving them an advantage when selling their own products and services. In some cases, that can harm consumers. In others, it can harm sellers. So far, antitrust law has struggled to address all the ways that dominant platforms skew markets.

As Klobuchar has pointed out, current law doesn’t address these problems, because existing antitrust measures were written before these platforms came on the scene. Anti-trust laws haven’t been meaningfully updated since the birth of the Internet.

The merits and concerns relevant to this legislation have been debated in Congress, and the bill is supported by the Justice Department. (DOJ’s analysis determined that the legislation would “supplement the existing antitrust laws in preventing the largest digital companies from abusing and exploiting their dominant positions to the detriment of competition and the competitive process.”)

There’s a reason those advertisements don’t tell us that what they oppose is an anti-trust measure that would hamper Big Tech’s ability to exploit dominant market positions. Most Americans wouldn’t see that as an attack on national security, because it isn’t.

Comments

How Much Do You Care?

In politics, it all comes down to salience. 

We often hear about survey research confirming that most Americans believe X or Y (usually, a relatively liberal policy), and then wonder why we can’t get lawmakers to pass X or Y. The usual cynical answer is money–the folks bankrolling the lawmakers–and there is certainly truth to that.

But the most accurate explanation is salience–or more accurately, the lack thereof. How much do the people expressing their approval of policy X or Y actually care about the issue?

I first realized the importance of the answer to that question several years ago, when a commission co-chaired by former Supreme Court Justice Shepard and former Indiana Governor Kernan concluded that Indiana needed to dispense with the 1008 township offices that had once had multiple duties, but for many years had mainly dispensed poor relief and maintained pauper cemeteries. (California, to the best of my recollection, had 59 townships at the time, reinforcing the argument that Indiana’s 1008 were excessive.) The commission noted that, to the extent that township duties still needed to be performed, the counties could easily take over those responsibilities.

Indiana’s townships were created when the ride to the county seat took half a day by horseback. The townships’ poor relief function preceded creation of federal welfare programs; not only was the need for local relief far less, several research projects showed that it cost taxpayers 1.50+ for every dollar of poor relief the townships were dispensing.

In addition, the Commission’s report noted that every one of those townships was paying a salary to the township trustee and a stipend to the five members of a township board. The League of Women Voters published a study showing that a number of Trustees paid rent on offices that were located in their own garages or other accessory buildings, and a number hired and paid family members as office personnel.

It all added up to a big waste of tax dollars, and the Indiana Chamber fielded a survey that found some 80% of Hoosier voters in favor of the change. The problem was, those voters really didn’t care very much. Reforming political subdivisions was way down on their list of pressing concerns. 

I bet you can guess who did care–the township trustees, and members of those township boards. They cared a lot, and they descended on the legislature in droves. Indiana still has 1008 townships.

So we come to the moral of my story. 

 A clear majority of American voters tell survey researchers that they want to protect abortion rights– at least to some extent. An even larger majority wants meaningful gun control and are unlikely to consider the current possible  “bipartisan agreement” sufficiently meaningful. Although we don’t have research on the number of voters appalled by what we are learning from the hearings being held by the January 6th Committee, it is likely to be a large number–even larger than the millions of votes cast for Joe Biden in 2020–and we can assume that those voters care about preserving American democracy and punishing the bad guys who tried to overturn it.

However, the critical question is: how much do they care? 

The midterms are coming up. Will the millions of Americans who don’t usually bother to cast a ballot go to the polls and send a clear and convincing message to lawmakers? Are these issues salient enough to enough Americans  to get them off their couches? Because if the GOP takes over the House or Senate or both, we can kiss goodby to both American democracy and accountability under the rule of law, let alone any glimmer of hope for imposing ethical standards on the Supreme Court, or curtailing the sale of weapons of war to teenagers.

If history is any guide, I’m not optimistic…..

Comments